Madhya Pradesh High Court
Ranjeet Singh vs Radheshyam on 11 March, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 11th OF MARCH, 2025
SECOND APPEAL No. 2114 of 2023
RANJEET SINGH
Versus
RADHESHYAM AND OTHERS
Appearance:
Shri Shashi Kant Chourasia - advocate for the appellant.
Shri Nilesh Sharma, learned counsel for the respondent [R-1].
Ms. Vinita Dwivedi - Panel Lawyer for the respondent/State.
RESERVED ON : 11.02.2025
PRONOUNCED ON : 11.03.2025
JUDGMENT
With consent of both the parties, the appeal is heard at motion stage.
2 . This Second appeal under Section 100 of Civil Procedure Code,
1908 (for brevity, CPC) has been filed by the appellant against the judgment
and decree dated 24.07.2023 passed by District Judge, Depalpur, District
Indore in Civil Suit No. RCA Nos.81/2021 and 85/2021 whereby the learned
trial Court allowed the respondent no.1/plaintiff's appeal (RCA/85/2021),
thereby declaring the usufructuary mortgage as redeemed and dismissed the
appeal (RCA/81/2021) presented by the appellant/defendant, further ordered
the appellants to vacate the suit land within two months.
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3. Th e respondent no.1/plaintiff claims that in the year 2000, he had
taken loan from the appellant/defendant on two occasions and after paying
the entire amount taken, he asked for handing over the possession of the land.
On this, the appellant/defendant refused to give the respondent no.1/plaintiff
the possession of the land by telling that the amount of interest was still
pending from the loan amount and taking advantage of the respondent
no.1/plaintiff 's illiteracy, appellant/defendant made all calculations. On
29.08.2000, while executing a new agreement, respondent no.1/plaintiff
assured the appellant/defendant to hand over the mortgaged land after getting
the entire amount mentioned in the agreement, from the produce of the land
and accordingly, after the complete calculation, appellant/defendant handed
over the ownership of the land to the respondent no.1/plaintiff in the year
2009, on which the respondent no.1/plaintiff sowed soybean crop, but
appellant/defendant threatened the respondent no.1/plaintiff and forcefully
harvested the crop, regarding which the respondent no.1/plaintiff filed a First
Information Report (Article 1) at Depalpur Police Station on 29.09.2009.
4. On that basis, an FIR was lodged and a case was registered before
the Sub-Divisional Magistrate under Section 145 of Cr.P.C, further in Civil
Suit, the respondent no.1/plaintiff claimed that he has repaid the entire loan
amount taken from appellant/defendant and if any interest is due on the
respondent no.1/plaintiff then appellant/defendant has recovered it from the
produce of the disputed land. As a result, the respondent no.1/plaintiff has
requested for declaratory relief to the effect that he has been freed from the
loan taken from appellant/defendant and he is entitled to get the possession of
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the disputed land from respondent no.1/plaintiff and has also requested to
issue a permanent injunction against appellant/defendant. In proceedings
under Section 145 of Cr.P.C, t he Sub-Divisional Magistrate passed an order
on 25.05.2010, declaring appellant/defendant as the possessor of the disputed
land and respondent no. 1/plaintiff owes Rs. 1,94,000/- and interest. Further
it was held that due to continuous possession as sub-sharee for 03 years from
07.05.1999, appellant/defendant has become the owner of the disputed land
by becoming the permanent tenant cultivator (मौ षी का तकार). Consequently,
by way of counter claim, respondent no.1/plaintiff has prayed for the relief of
declaring himself as the permanent tenant cultivator (मौ षी का तकार) of the
disputed land and issuing a permanent injunction against
the appellant/defendant for not interfering in his possession over the suit land.
5. The respondent no.1/plaintiff has denied all the averments of the
counter claim and has replied to the effect that the Sub-Divisional Officer has
acknowledged the possession of the appellant/defendant on the suit land on
the basis of a false agreement. The respondent no.1/plaintiff had been
directed to file a suit in the competent court and that the respondent
no.1/plaintiff does not owe any amount to appellant/defendant. The
respondent no.1/plaintiff did not give the suit land to appellant/defendant on a
share basis nor did he receive any goods from respondent No-1/plaintiff and
in addition, the respondent/plaintiff, while re-mentioning the grounds of the
case mentioned in his plaint, has also objected to the counter claim presented
by appellant/defendant that the counter claim has been presented beyond
limitation and against the law, which is liable to be dismissed.
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Appellant/defendant has made contradictory statements in the counter claim,
hence a request has been made to dismiss the counter claim presented by
appellant/defendant for damages of Rs. 20,000/-.
6 . The learned trial court, after recording the evidence of both the
parties in its impugned judgment dated 31.03.2015, rejected and dismissed
the counter claim and the suit was partially accepted. Aggrieved by the
impugned judgment and order of the learned trial court, both the parties have
filed separate regular civil appeals.
7. While disposing of the cases RCA/81/2021 and RCA/85/2021 First
appellate Court dismissed the appeal presented by the appellant/defendant
and RCA/85/2021 and allowed the appeal presented by the respondent
no.1/plaintiff vide order dated 24.07.2023, hence being aggrieved by the
impugned order, present second appeal has been filed by the
appellant/defendant.
8 . Learned counsel for the appellant submitted that although the
learned trial Court as well as the learned appellate court have committed
error in adjudicating the facts of the case the learned trial Court has wrongly
decreed the suit in favour of respondent no.1/plaintiff that suit land would be
returned in favour of respondent no.1/plaintiff after depositing the loan
amount of Rs.20,000/- and Rs.10,000/- within two months along with
respective interest. Finding of learned appellate Court is also not correct in
the eyes of law and fact. The appellate Court while affirming the trial Court
judgment wrongly ordered the appellant /defendant to get vacated from the
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suit land within two months. The finding of learned trial Court is erroneous
in holding that documents Ex.P/3 and P/4 have been prepared fraudulently.
Similarly the findings of learned appellate Court in view of Section 165(2)(b)
Madhya Pradesh Land Revenue Code 1959 (herein after referred to as
MPLRC) is also incorrect in the eyes of law. It is further submitted that in
the pending case No. 136/10, appellant/defendant Ranjit has stated in Exhibit
D/3 before the appellate Court, that there is a clear acceptance by the
appellant/defendant as half-shareholder on parts A to A of the said document
Exhibit D/3. It is also contended that Annexure-D/4 is an half-share deed
however the same has been considered as mortgage deed by the trial Court.
I t is also contended that the appellate Court has also committed error in
dismissing the counter claim of appellant/defendant hence the impugned
judgment and decree is not sustainable.
9. Learned counsel for the respondent no.1/plaintiff has borne out the
finding of learned appellate Court and submitted that in view of Section
165(2)(b) usufructuary mortgage is automatically culminated by the effect of
operation of law, hence the finding of learned First Appellate Court is correct
in view of law and facts.
10. Having heard learned counsel for the parties I have gone through
the record.
11. The Second Appeal is filed under the provisions of Section 100 of
CPC which provides that Second Appeal is entertainable by the High Court if
it is satisfied that the case involves a substantial question of law. Section 101
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of CPC provides that no second appeal shall lie except on the ground
mentioned in section 100 of CPC.
12. In the case at hand, it is revealed that the learned trial Court after
proper appreciation of evidence opined that the respondent no.1/plaintiff has
right to recover the possession from the appellant/defendant after depositing
the amount of Rs.20,000/- and Rs.10,000/- with respect of interest, however,
the finding of learned trial Court is not correct. In view of the provisions
predicated under Section 165(2)(b) of MPLRC, because the said mortgage
was executed in the year 1998 and the plaintiff has filed civil suit in the year
2010. As such the finding of learned appellate Court in view of Section 165
(2)(b) could not be held incorrect in the eyes of law, although it is a reverse
finding to some extent.
13. On this aspect the following view of Hon'ble Apex Court rendered
in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar; (1999) 3
SCC 722, is condign to quote here under:-
"5. It is not within the domain of the High
Court to investigate the grounds on which the
findings were arrived at, by the last court of
fact, being the first appellate court. It is true
that the lower appellate court should not
ordinarily reject witnesses accepted by the trial
court in respect of credibility but even where it
has rejected the witnesses accepted by the trial
court, the same is no ground for interference in
second appeal when it is found that the
appellate court has given satisfactory reasons
for doing so. In a case where from a given set
of circumstances two inferences are possible,
one drawn by the lower appellate court is
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binding on the High Court in second appeal.
Adopting any other approach is not
permissible. The High Court cannot substitute
its opinion for the opinion of the first appellate
court unless it is found that the conclusions
drawn by the lower appellate court were
erroneous being contrary to the mandatory
provisions of law applicable or its settled
position on the basis of pronouncements made
by the Apex Court, or was based upon
inadmissible evidence or arrived at without
evidence.
6. If the question of law termed as a substantial
question stands already decided by a larger
Bench of the High Court concerned or by the
Privy Council or by the Federal Court or by the
Supreme Court, its merely wrong application
on the facts of the case would not be termed to
be a substantial question of law. Where a point
of law has not been pleaded or is found to be
arising between the parties in the absence of
any factual format, a litigant should not be
allowed to raise that question as a substantial
question of law in second appeal. The mere
appreciation of the facts, the documentary
evidence or the meaning of entries and the
contents of the document cannot be held to be
raising a substantial question of law. But where
it is found that the first appellate court has
assumed jurisdiction which did not vest in it,
the same can be adjudicated in the second
appeal, treating it as a substantial question of
law. Where the first appellate court is shown to
have exercised its discretion in a judicial
manner, it cannot be termed to be an error
either of law or of procedure requiring
interference in second appeal. This Court in
Reserve Bank of India v. Ramkrishna Govind
Morey [AIR 1976 SC 830]held that whether
the trial court should not have exercised its
jurisdiction differently is not a question of law
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justifying interference"
14. In view of the law laid down by Hon'ble Apex Court, the matter
has been further considered. In this regard Section 165(2)(b) is worth to
quote here under:-
165. Rights of transfer:
Subject to the other provisions of this section and the provisions
of the proviso to sub-section (3) of Section 158 and provisions of
Section 168, a bhumiswami may transfer any interest in his land.
2. Notwithstanding anything contained in sub-section (1)
(a) no mortgage of any land by a bhumiswami shall hereafter be
valid unless atleast five acres of irrigated or ten acres of
unirrigated land is left with him free from any encumbrance or
charge;
(b)subject to the provisions of clause (a), no usufructuary
mortgage of any land by a bhumiswami shall hereafter be valid if
it is for a period exceeding six years and unless it is a condition of
the mortgage that on the expiry of the period mentioned in the
mortgage deed, the mortgage shall be deemed, without any
payment whatsoever by the bhumiswami to have been redeemed
in full and the mortgagee shall forthwith re-deliver possession of
the mortgaged land to the bhumiswami;
(c) if any mortgagee in possession of the land mortgaged does not
hand over possession of land after the expiry of the period of the
mortgage or six years whichever expires first the mortgagee shall
be liable to ejectment by the orders of the Tahsildar as trespasser
and the mortgagor shall be placed in possession of the land by the
Tahsildar.
15. In view of the aforesaid provisions of law the matter has been
considered. In this case the said mortgage deed Ex.P/3 was executed on
07.05.1998, however, after perusal of the deed it is revealed that no time
limit has been mentioned. Since the said deed is admittedly related
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t o usufructuary mortgage, hence by the provisions of law, it cannot be
sustained for more than six years. In this case the plaintiff has filed the suit
in the year 2010 hence the said mortgage deed has already been redeemed
and extinguished by the operation of law and therefore, plaintiff has the
right to get the possession of suit land.
16. Learned first appellate Court considering the aforesaid aspects of
the law and on proper appreciation of evidence dismissed the counter claim
of appellant/defendant and affirmed the finding with regard to recovery of
possession in favour of the respondent. The finding of the learned appellate
Court is immaculate, hence no substantial question of law is made out.
17. Accordingly, Second appeal is hereby dismissed.
(PREM NARAYAN SINGH)
JUDGE
sumathi
